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Health as a part of Fundamental Right under Article 21: A pursuit by India

Historical Background and Jurisprudence of Right to Health

Right to health refers to and mean the most attainable levels of health that every human being is entitled to. Health has been much regarded as the basic and fundamental human right by the international community under international human rights law. In contrast to all the other human rights, the right to health creates an obligation upon the states to ensure that the right to health is respected, protected and fulfilled, and is duly entitled to all its citizens. [i]

According to Salmond, every right has a corresponding duty to be fulfilled and there can be no right without a parallel element of duty. [ii]

Similarly, there are both positive and negative enforceable contents regarding the right to health; these ranges from adequate protection by the state, providing equal health care facilities to each individual and imposing the most important obligation upon the state to create such favourable conditions which render the fulfilment of the right to health. [iii]

The origination of the right to health dates as back as 1946 when the first international organisation, World Health Organisation (WHO) came into existence to formulate health terms as human right.[iv]And even prior to the coming of World Health Organisation, there were several countries that have been in the phase of granting of health as a fundamental right. The movement owes its existence to the industrial revolutions also wherein the workers were treated as commodity and the employers paid no head to the insanitary conditions of working areas. Subsequently, the demand for health grew to the extent that it came to be treated as one of the important aspect of the fundamental and basic human rights that any human being having his/her existence on earth is entitled to.

Meaning And Nature of Health

Health has been defined to mean a state of absolute mental, physical and social well being; and therefore is not only restricted to merely absence of diseases.[v]The definition has been further simplified to include ability to lead economically as well as socially productive life. This led to the expansion of the dimensions and scope of right to health which has multiple effects on the duty and responsibility of the health professionals along with their relationship with the society at large.[vi]

International standards pertaining to right to health

Presently, the international organisation working towards the highest attainment of right to health is the World Health Organisation. Within this, there is a World Health Organisation Indicatory Metadata Registry (IMR) that acts as a central source of meta-data and lays down certain indicators for the highest attainment of standards ensuring right to health. These standards are followed by World Health Organisation as well as other organisations also. [vii]

Now, the general question which arises is as to what does these indicators include. The indicators are actually inclusive of all the definitions, the methods of estimation, data sources and certain other information that provide a better understanding of the interests. [viii]

As many as 100 indicators have been prioritized by the global community that provides crisp information on the existing health situation, trends and rebuttals at the global and national level. The indicators are majorly classified into four heads: Health status, Risk factors, Service coverage, and Health systems. Given hereunder, is the list of 100 Core Health Indicators given by the World Health Organisation in 2015:

Under the first category of Health and Status, there are four sub-headings within which certain criteria have been laid down, these are:
1, Mortality by age and sex
a. Life expectancy calculated at the time of birth
b. The mortality rate amongst adults aged between 15 to 60 years of age
c. Mortality rate amongst infants
d. Neonatal mortality rate
e. Stillbirth child rate

2. Mortality by cause
a. Mortality ratio amongst women during pregnancy
b. Tuberculosis mortality rate
c. Mortality rate amongst AIDS infected persons
d. Rate of Mortality due to malaria
e. Mortality rate due to cardiovascular diseases, diabetes, cancer or any other chronic respiratory diseases in persons aged between 30 and 70 years
f. Suicide rate
g. Rate of mortality resulting from road traffic injuries

3. Fertility
a. Overall fertility rate
b. Fertility rate in adolescent

4. Morbidity
a. Any new cases which come up pertaining to vaccine-preventable diseases
b. Other new cases which fall under the category of diseases either notified by the IHR or otherwise notified.
c. Incidence rate of HIV infected persons
d. The HIV prevalence rate
e. Prevalence rate of Hepatitis B surface antigen
f. The incidence rate of Sexually transmitted diseases
g. Incidence rate of Tuberculosis
h. Prevalence rate of Tuberculosis
i. Prevalence of Malaria Parasite amongst children aged between 6 and 59 months
g. Incidence Rate of Malaria
h. Incidence of cancer by each type.

Under the second category of Risk Factors, there are five sub-headings within which certain criteria have been laid down, these are:
1. Nutrition
a. Breast feeding rate of 0 to 5 months old age infants, in exclusivity
b. Quite early initiation of the breast feeding
c. Rate of incidence of lower birth weight amongst the newborn infants
d. Stunted children under the age of 5 years
e. Wasted children under the age of 5 years
f. Incidence of Anemia prevailing in the children
g. Incidence of Anemia prevailing in the women who are in their reproductive age

2. Infections
a. Use of protection such as condoms during last sex with the high risk partners

3. Environmental risk factors
a. Use of safely managed drinking water services by the population
b. Safely managed sanitation services used by the population
c. Use of modern fuels for purposes of cooking, lighting or heating by the population
d. Levels of air pollution in the cities

4. Non-communicable diseases
a. Per capita consumption of alcohol among individuals aged more than 15 years of age
b. Use of tobacco amongst the individuals aged more than 18 years of age
c. Incidence of overweighing among children under 5 years of age
d. Rate of obesity and overweight in adults and adolescents
e. Levels of blood pressure amongst adults
f. Level of raised glucose or diabetes amongst adults
g. The amount of salt intake per individual
h. Physical activity undertaken by adolescents as well as adults

5. Injuries
a. Prevalence of violence by the intimate partner

Under the third category of Service Coverage, there are as many as nine sub-headings within which certain criteria have been laid down, these are:
1. Reproductive, new born, child, maternal and adolescent
a. Satisfaction of Demand for family planning with the modern methods
b. Prevalence rate of contraceptives
c. Coverage horizon of Antenatal Care
d. Attending of births by the skilled health personnel
e. Coverage horizon of post-mortem care
f. Pneumonia care-seeking symptoms
g. Oral rehydration solution given to children with diarrhoea
h. Coverage horizon of Vitamin A supplementation

2. Immunization
a. The coverage rate of immunization by each vaccine for the same in the national schedule.

3. HIV
a. Already diagnosed people living with HIV positive
b. Prevention of HIV from being transferred mother to child
c. Coverage horizon of HIV care
d. Coverage horizon of antiretroviral therapy (ART)
e. HIV viral load suppression

a. Tuberculosis preventive therapy for the HIV positive people who have newly been registered in the HIV Care Centres
b. Test results for HIV of the newly registered cases and relapse of the Tuberculosis patients
c. Relapse of Tuberculosis patients on ART and HIV positive new registration during Tuberculosis treatment.

5. Tuberculosis
a. Number of patients with their results for drug susceptibility testing
b. Detection rate of tuberculosis
c. Second line treatment horizon of coverage amongst the multi-drug resistant tuberculosis disease cases

6. Malaria
a. Intermittent preventive therapies for malaria for women during their pregnancy
b. Use of the insecticide treated nets
c. Treatment of the typical malaria cases
d. Indoor residual spraying coverage

7. Neglected tropical diseases
a. For the selected neglected tropical diseases, the horizon of coverage of preventive chemotherapy pertaining to the same

8. Screening and preventive care
a. Screening of cervical cancer

9. Mental Health
a. Coverage of services in cases of severe mental health disorders.

Under the fourth category of Health systems, there are six sub-headings within which certain criteria have been laid down, these are:
1. Quality and safety of care
a. Readiness and service-specific availability
b. Success rate of Tuberculosis treatment
c. Retention rate of ART
d. Maternal death reviews
e. Institutional maternal mortality ratio
f. The obstetric and the gynaecological admissions which lead to abortions
g. Preoperative mortality rate

2. Access
a. Utilization of service
b. Access to health services
c. Hospital and bed density
d. Availability of essential commodities and medicines

3. Health workforce
a. Health worker distribution and density of each worker
b. Output training institutions

4. Health information
a. Pertaining to birth registration
b. Pertaining to death registration
c. Completeness in terms of facilities

5. Health financing
a. Total current expenditure as percentage of gross domestic product on health
b. Percentage of current expenditure on health spent by the general government and on compulsory schemes
c. Percent of current expenditure on health on out-of-pocket payments
d. Percentage of current expenditure on health as derived from externally sourced funding
e. Percentage cumulatively taken of current and capital expenditure on health i.e. the total expenditure spent on health
f. Per capita i.e. headcount ratio of catastrophic health expenditure
g. Per capita i.e. headcount ratio of impoverishing health expenditure

6. Health security
a. The IHR (short for International Health Regulations) core capacity index

Implications of right to health on the Constitution of India Role of the state in implementing the right to health and the basic requirements to be fulfilled in providing the same

A closer look at the bare text of the Constitution of India will render to the conclusion that the Right to health has not been directly incorporated as a fundamental right. However, the framers and the founding fathers of the constitution had really farfetched vision and thus, had imposed the duty on state in the nature of Directive Principles of State Policy under Part IV of the Constitution wherein it is the responsibility of the state to ensure social and economic justice to its citizens. Therefore, a general inference is that Part IV of the Constitution directly or indirectly relates to the public policy in terms of health.

Article 38 of the Constitution lays down the responsibility of the state to secure social order for the in promotion of the welfare of public health.
Article 39 clause (e) pertains to the protection of health of the workers.
Article 41 relates to providing public assistance by the state in special circumstances such as sickness, disability, old age etc.
Article 42 protects the health of the infant and the mothers, i.e. in a way, it pertains to maternity benefit.
Article 47 imposes a primary duty of the state in improvement of public health, in securing of justice, providing humane conditions of work for the workers, extension of benefits pertaining to sickness, disability, old age and maternity benefits. In addition to this, the state is under an obligation to prohibit the consumption of liquor in the interest of the public good.

Article 48A states the duty of the state towards providing of a good and healthy pollution free environment.

However, these Directive Principles of State Policy hold merely persuasive value and are non-justiciable, i.e. they are not enforceable in the court of law.

Role of Judiciary in interpreting the right to health under Part III of the Constitution

For the very reason of Direct Principles holding only persuasive value, the state used this as a weapon to escape its duty, responsibility and liabilities in providing and protecting health of the common public. Therefore, the Hon’ble Supreme came to the rescue and brought the right under the purview of Article 21 of the Constitution of India. The scope of Article 21 has, thus, been widened. Article 21 ensures the right of life and liberty to each individual, citizens or non-citizens.
The concept of personal liberty is meant to include rights that may or may not be directly linked to the life and liberty of a person; which now includes right to health as well.

The initiation of the period of progressive jurisprudence following recognition of fundamental right was lately during the litigation pertaining to human rights in Keshwanand Bharti[ix]. And around the same time also, the standing rules were relaxed pertaining to the promoting of Public Interest Limited, and access to justice. There further led to a steep rise in the health related litigation.

Subsequently, there were further developments including establishment of the consumer courts and secondly, the recognition of health care as fundamental right. This is because, the Supreme Court allowed individuals to approach directly for the protection of human rights.

Right to life under Article 21 of the Constitution has been liberally interpreted to mean something more than merely human existence and includes the right to live with dignity and decency.

In 1995, the Hon’ble Supreme Court of India in the case of Parmanand Katra[x]held that those who are indulged into the profession of medical are in charge of public health and have an inherent obligation to protect the same so that those who are innocent can be protected and the guilty be punished.
In yet another case of Spring Meadow Hospital[xi], the court held that there is need for sensitization of relevant law pertaining to the content of the right to health. An act to deal with legal prohibition of commercialized transplantation has further animated the right to health.

Therefore, the recognition of dignity and fundamental right to life led to recognizing of the importance of health. In another case of Bandhua Mukti Morcha v. Union of India[xii], the court held that although the Directive Principles of State Policy hold persuasive value, yet they should be duly implemented by the state; and it was in this case also that the court had interpreted the dignity and health within the ambit of life and liberty under Article 21 of the Constitution of India.

In Consumer Education and Research Centre v. Union of India, the court had expressly opined that right to health was also an integral factor to lead a meaningful life and for the right to life under Part III. And the court also stated that health includes the access to medical care for the highest attainment of living standards.

In Ram Lubhaya case, while examining the revolving around the issue of right to health under Article 21, 41 and 47 of the Constitution of India, the court observed that right of one correlates with the duty of another. Hence, the right entrusted under Article 21 imposes a parallel duty on the state which is further reinforced as under Article 47. Even though several schools and hospitals are set up by the government but the duty is not fulfilled until they can be in reach of the general public. It is pertinent to note that the Hon’ble Court in this case regarded health to be a sacrosanct, sacred and valuable right.
Further, in Paschim Banga Ket Mazdoor Samity[xiii]case, the scope of Article 21 was further widened; herein the court held that it is the responsibility of the government to provide adequate medical aid to every person and to work in the welfare of the general public. Moreover, Article 21 imposes obligation on the state, the state is required to protect and safeguard right of every person.

The Hon’ble Supreme in another case held that health is a fundamental right and is not restricted to merely absence of diseases or sickness. The medical and health facilities are sort of incentive for the workers’ to work with best productivity both in physical and mental terms. Conclusively, medical facilities are also part of the social security. [xiv]

In T. Ramakrishna Rao [xv] case, the Hon’ble High Court gave the observation that protecting environment is duty of both citizens and the state. Article 21 also embraces the protection and preservation of the environment for the reason that the environmental pollution is a slow death and therefore, it is violation of Article 21 of the Constitution of India.

In the famous case of Ratlam Municipal Corporation, the court held that it is the primary duty of the state under Article 47 of the Constitution to ensure the living conditions of the people are healthy and enforce this duty against any governmental body or authority who defaults in doing so irrespective of the financial resources it has. [xvi]

Heath has been regarded as fundamental human right by the World Health Organisation (hereinafter referred to as WHO). The member nations have, consensually, considered that the enjoyment of highest and most attainable standard of health is the basic and fundamental right of every human being, irrespective of religion, race, caste, sex, creed, and political belief, social or economic condition. Meaning thereby, health is the fundamental right of all people and everyone must have access to the required services as and when the need arises.

Good health pertains to clean and safe drinking water, sanitation, adequate housing, education and humane working conditions, nutritious foods etc. Health has in one way been linked to the right to privacy wherein everyone is entitled to their respect and dignity. Therefore, every person is entitled to control his/her own body and health which also includes various other elements.

In India, judiciary has played a major role in recognizing the right to health as a part of Article 21 of Chapter III which deals with the fundamental rights guaranteed under the Constitution of India. State has been directed to provide the highest attainable health standards to its citizens towards the fulfilment of International standards.

There are not only a few but ample of cases wherein the judiciary had actively decided upon the cases pertaining to the right to health and ensuring that the state fulfills its duty in ensuring that the right so entrusted is duly assured to its public. Time and again, the Supreme Court as well as the High Courts has utilized their power under Article 32 and 226 respectively by reading right to health in Article 21 of the Constitution. Even though such powers may be in the nature of judicial over reach, yet such decisions are most welcomed. The presence of Directive Principles of state Policy further strengthens the need and the duty on the state to do so.

The hypothesis is proved negative for the reason that the State is trying best to set up health and medical facilities as well as trying to ensure that the facilities reach to the common people. Although, in few instances, though lesser in number, there are some negligence on part of medical professionals in providing adequate facilities to the public. We need to understand that all this cannot be achieved in a single day or fortnight. Certainly, there are lack of funds, but to overcome this hurdle, the state has been trying to best work in collusion with Private players also, i.e. in form of Private Public Partnership.

[i] Aart Hendriks, The Right to Health in National and International Jurisprudence, European Journal of Health Law 5 (1998).
[ii] Deepika Prasad, Jurisprudence-relationship between rights and duties, LegalCrystal Blog (March 9, 2013) last accessed on 21 Feb 2018.
[iii] Ibid (n 1).
[iv] Ibid.
[v] Preamble to Constitution of the WHO, adopted by the International Health Conference, New York (signed on July 22, 1947, entered into force on April 7, 1948)
[vi] Avanish Kumar, Human Right to Health, Satyam law International (2007)
[vii] World Health Organisation, last accessed on 21 Feb 2018
[viii] Ibid.
[ix] Keshwanand Bharti v. State of Kerala, (1973) 4 SCC 225.
[x] Parmanand Katra v. Union of India, AIR 1989 SC 2039
[xi] Spring Meadow Hospital v. Harijol Ahluwaliya, AIR 1998 SC 180
[xii] AIR 1984 SC 812
[xiii] Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal, (1996) 4 SCC 37
[xiv] CESC Ltd. v. Subash Chandra Bose, AIR 1992 SC 573
[xv] T. Ramakrishna Rao v. Hyderabad Development Authority,
[xvi] Ratlam Municipal Council v. Vardichand, Air 1980 SC 1622

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